topQ: What have been the main changes in the national law or practice due to the Directive. Please indicate for each change whether it improved or deteriorated the legal status of third country nationals and their family members? Did it make the national rules more strict or more liberal?

topQ: Did the judgment of the Court of Justice of 27 June 2006 in the case Parliament v. Council (C-540/03) already have any effect on the implementation of the Directive, the national practice or case-law or the legal literature? If so, please specify the effects.

topQ: Article 3(1): How is the clause: who has reasonable prospects of obtaining the right of permanent residence implemented in the national law?

answer United Kingdom

A: In the United Kingdom, this would be taken to mean people with leave (ie the right to remain) in a category which leads to settlement (ie a permanent right of residence). So although the current status of a person may not be permanent (eg because they still have to comply with certain conditions), ultimately if they do comply they will be able to apply for settlement. Immigration categories would include spouses, civil partners, unmarried partners, work permit holders, highly skilled migrants etc.

topQ: Article 3(3):
Will a third country national also having the nationality of your country be able to rely on the Directive?

answer United Kingdom

A: Dual nationals have been able to choose which nationality they want to rely on in immigration terms. So for example, British citizens holding another EEA nationality have been able to take advantage of EU free movement law when it is more beneficial than UK immigration law. However, the United Kingdom will not allow people to pick and choose. So for example, if a of a British/Irish national enters the United Kingdom under EU law, that national would not be able to get permanent residence for his spouse after two years as he would have been able to had she entered under UK law. I see no reason why UK authorities would not adopt this line in relation to the Directive if they were to opt in.

topQ: Article 3(3):
Are nationals of your country and their third country national family members entitled to the same treatment, to a more privileged treatment or to less favourable treatment as provided in the Directive? Please specify the differences.

answer United Kingdom

A: People with settled status are given the same treatment to bring their third country family members to the UK as British nationals. Third country nationals with limited right to stay in the United Kingdom (limited leave) are usually allowed their spouses with them. There are some exceptions, including people with humanitarian leave who would have to wait three years until they are granted indefinite leave and those with discretionary leave who would have to wait six years before they are entitled to family reunion rights, unless they can show compelling compassionate circumstances.

topQ: Article 4(1):
Has the right to family reunification of spouses and minor children been codified in national law? If so, please mention the relevant provisions of national law.

answer United Kingdom

A:

Spouses

The Immigration Rules allow spouses of those settled in the United Kingdom to be admitted (subject to requirements). The provisions are set out in the Immigration Rules paras. [277-283] for individuals not yet in the United Kingdom and in paras [284-286] for those already in the United Kingdom.

Where a spouse is not settled in the United Kingdom, the rules sometimes allow admission for limited periods. The Immigration Rules allow for the admission of the spouses of people in the following categories:

work permit holders

highly skilled migrants

science and engineering graduates

representatives of overseas news media

sole representatives

private servants in diplomatic households

domestic workers in private households

overseas government employees

ministers of religion, missionaries and members of religious orders

airport-based operational ground staff of overseas-owned airlines

persons with UK ancestry

business persons

innovators

investors

writers, composers and artists

retired persons of independent means

(The relevant paragraphs of the Immigration Rules are 194- 199, 240-245, 271-276, 295J-295L)

In addition, the spouses of students are allowed to be admitted for the same period as that of the student. The relevant rules are 76-81.

Minor children

The main rules relating to children are dependent on whether the child is a) joining or staying with both parents who are settled in the United Kingdom or accompanying parents who are coming for settlement [paras 297-300] or b) coming to join one parent in the UK or accompanying one parent for settlement [297(e)-(f) and 298(i)(c)-(d)]. (The Rules for one parent bringing a child to the UK hinge on whether that parent had sole responsibility for the child which can be a very onerous test to fulfil.)

The other main category is children accompanying or joining parents who are in the UK with limited leave [paras 197-199 ] All the categories in the list set out under the heading spouse above would be able to bring in children under the age of 18, provided that they are unmarried, that they have not formed an independent family unit, will be adequately maintained and accommodated without recourse to public funds and they will not remain in the United Kingdom for longer than the leave given to their parents. (Please note that there is a concession for children over the age of 18 of work permit holders as intra company transferees).

In addition, the Immigration Rules provide for children joining or staying with a person in the UK who is not their parent [para 297(i)(f)] and adopted children [309A-316]

topQ: If children over 15 are prevented from applying for family reunification under what conditions are they entitled to reside considering the obligation for Member States second sentence of Article 4(6)?

topQ: Article 4(3) (unmarried partners)
Has the provision on the admission of unmarried partners been implemented in national law? If so, under what conditions do they have a right to family reunification?

answer United Kingdom

A: Unmarried partners are entitled to join partners of people settled in the United Kingdom in the same way that spouses are. The categories who are able to join people who are on limited leave are also as listed above under the catgories for spouses. (Please note though that students are not able to bring their unmarried partners to the United Kingdom). The rules for unmarried partners are found in 295AA-C of the Immigration Rules. The relationship has to be akin to marriage and the couple have to have been cohabiting for at least two years. As with the other dependants, they must be able to maintain and accommodate themselves without additional recourse to public funds and both parties to the relationship have to be over the age of 18.

topQ: Article 5(2) (documents and fees)
What kind of documentary evidence has to be presented with a family reunification application?

answer United Kingdom

A: The onus is on the applicant to prove to the decision maker that he or she qualifies under the Immigration Rules. (The documents required for applications made from within the UK and at an Embassy are similar and as most applications are entry clearance applications this has been focussed on here). The documentary evidence that is listed in the forms which would be completed (VAF2) for such an entry clearance application are as follows:

The appropriate fee

A valid passport or travel document which has more than six months still to run

Passport sized photo

Evidence to substantiate information given, including about their own or their sponsors income, finances and accommodation.

The guidance for husbands, wives and partners states the following should be provided:

birth certificate

marriage certificate (if you are married) or your civil partnership certificate (if you have registered a civil partnership)

sponsors birth certificate

recent statements or letters from the sponsors UK employer, bank, local authority or building society to show what support and accommodation will be available for the applicant in the UK

letters from the applicant and the sponsor that are relevant to your application

if either of the parties have been married or in a civil partnership before, one of the following documents:

a divorce certificate

a final dissolution order, or

husband's, wife's or civil partner's death certificate

evidence that the sponsor is settled in the UK. (This can be a copy of the passport or registration certificate that has been confirmed as a true copy, in other words certified)

In reality, birth certificates are not usually required.

The guidance for entrance as a child states the following:

Provide all the documents you can to show that you qualify for entry to the UK to live with relatives. If this is not done the application. May be refused.
As a guide, the following should be included:

evidence that the sponsor (the relative you are applying to join) is settled in the UK, such as a certified copy of their passport or registration certificate, and

recent statements or letters from the sponsor's UK employer, bank, local authority or building society to show the support and accommodation that the applicant will have in the UK.

If the applicant is applying to join his parents an original birth certificate should also be shown.
In some cases the Entry Clearance Officer (ECO) may ask for a DNA test to be conducted to prove the relationship

topQ: Article 5(3) (place of application)
May an application be submitted when the family members are already residing in the Member State?

answer United Kingdom

A: The rules on who can make an application from within the UK are extremely complex. The basic rule for third country nationals joining their relatives with limited leave to remain in the UK is that they would have to apply for entry clearance at a British mission abroad. In a limited number of circumstances, dependent on the leave that the person applying to join the relative in the United Kingdom has and what they are trying to switch to they will be able to change their status. So for example, unmarried partners are able to switch in country from any status (even visitor status) in recognition of the fact that they have to be able to accumulate their two year cohabitation period and often this will need to be in another immigration category. This is however the exception rather than the rule. There has a move throughout the past years for the Home Office to restrict the number of applications which can be made from within the United Kingdom.

topQ: Article 5(5) (interest of the child)
How is the provision that Member States 'shall have due regard to the best interests of minor children' implemented in national law?

answer United Kingdom

A: The concept of best interests of the minor children is not explicitly provided for in the Immigration Rules. It cannot currently be considered a guiding principle of family reunion for children in the UK. In two cases (Ahmed & Patel and Gangadeen) the Court of Appeal treated the best interests of the child as a factor in immigration decisions involving family life but not as paramount. The cases also confirmed that the United Nations Convention on the of the Child (ratified by the United Kingdom in 1991) is not directly applicable in immigration cases.

topQ: Article 6 (public policy exception)
How has the public policy and public security exception been implemented and defined in the national law?

answer United Kingdom

A: Currently under UK immigration law, the Home Office may deport a person on the ground that their presence is not conducive to the public good. In deciding whether to do so a wide range of issues have to be taken into consideration which are set out in the Immigration Rules (paras 364-368), including the following:

the persons age;

their length of residence in the UK;

their strength of connections with the UK;

their personal history, including character, conduct and employment record;

topQ: What are the similarities and differences compared to the definitions of the same notions in the context of free movement of EU citizens?

answer United Kingdom

A: This question is irrelevant for the UK, given the different test. The test set out above is far wider than the concepts used in EU law and allow the Home Office much wider powers in terms of determining who to deport.

topQ: Article 7(1)(a) and (c)(income and housing)
How is the income requirement specified in the national law?

answer United Kingdom

A: The income requirement for individuals is that they can adequately maintain and accommodate themselves in the United Kingdom without recourse to public funds. [This test does not apply to refugees who apply to bring their families to the United Kingdom]. More accurately, the test is that maintenance and accommodation must be without additional recourse to public funds, ie the sponsor remains entitled to public funds if he or she is still eligible. There is no specific sum set out in legislation, but the Home Offices view is that the level set by income support is the minimum standard of support considered to be acceptable. Each case though is judged individually and is dependent on what the individuals needs.

topQ: Is there a housing requirement in force, and if so, what is the minimum surface of the accommodation (in square meters)?

answer United Kingdom

A: The housing requirement is complex and is based primarily on the number of rooms that the accommodation has. The Rules state that accommodation must be owned or occupied exclusively. Home Office guidance (Immigration Department Instructions Chp 8, s1, annex F, para 6) states that:

Accomodation can be shared with other members of a family provided that at least part of the accommodation is for the exclusive use of the sponsor and his dependants. The unit of accommodation may be as small as a separate bedroom but:

must be owned or legally occupied by the sponsor;

its occupation must not contravene public health regulations; and

its occupation must not cause overcrowding as defined in the Housing Act, 1985.

The Housing Act provides two tests for overcrowding but the Home Office only relies on one. The number of persons permitted to stay in the accommodation is dependent on the number of rooms available. Rooms are only permitted to be included in the count if firstly, they are of a type usually used as a bedroom or a living room (ie kitchens and bathrooms do not count) and if they are more than 50 square feet (roughly 4.6 square metres).

The table below sets out the permitted number of people:

Number of rooms

Permitted number of persons

1

2

2

3

3

5

4

7.5

5

10

An additional two persons are allowed for each room in excess of five.

Children under the age of one do not count and children aged between one and ten years only count as half a person.

topQ: Article 7(2) (integration measures)
Are family members required to comply with integration measures? If so, do they have to comply before or after admission and what are they actually required to do (follow a course, pass a test, etc.)

answer United Kingdom

A: The UK does not impose any sort of test like this when a family member initially arrives in the United Kingdom. It is not until a person wants to naturalise that they have to pass a test.

topQ: Article 8 (waiting period)
Is there any waiting period before the family reunification application can be filed?

answer United Kingdom

A: It is expected that the sponsor should have settled status before they can apply for family reunion unless they fall within the people listed under the heading spouse above in a limited leave category which allows for family reunion. In reality this means that people granted humanitarian leave or discretionary leave will have to wait before being in a position to apply for family reunification. In practice, those with humanitarian leave would have to wait three years and those with discretionary leave, six years.

topQ: Do other protected persons than Convention refugees benefit from the provisions of Chapter V of this Directive?

answer United Kingdom

A: They would not in the UK. People granted humanitarian protection and discretionary leave have to be settled and fulfil the Immigration Rules to benefit from provisions like those in Chapter V of the Directive.

topQ: Article 10(3) (family members of unaccompanied minors)
Are the parents, legal guardians or other family members of a refugee who is an unaccompanied minor, entitled to a residence permit under national law?

answer United Kingdom

A: No. The Home Office has adopted a hard line and the current Asylum Policy Instructions state: The parents and siblings of a minor who has been recognised as a refugee are not entitled to family reunion. Such applications are considered under the criteria above, ie there must be compelling compassionate circumstances in order for the family to be granted entry to the UK.

topQ: Article 11 (lack of documents)
Which rules on alternatives to official documents in case of lack of official documents proving the family relationship are provided for in the national law?

answer United Kingdom

A: There are no specific rules on this. In practice Embassies have been quite lenient in what they will accept to establish a relationship. With children they will at times ask for DNA tests. In the guidance followed by the Embassies it states that staff can request the original documents of the refugee from the Home Office to see whether somebody the refugee is claiming is a dependant was actually mentioned at the time the original asylum claim was made.

topQ: Article 12 (exemption from requirements)
From which requirements for family reunification, mentioned in Article 7 or Article 8, are refugees or their family members explicitly exempted by national law?

answer United Kingdom

A: Family members of refugees do not have to fulfil accommodation, maintenance or sickness insurance conditions. [Immigration Rules 352- 352F]. The sponsor does not have to have spent any specific time in the United Kingdom before his family can apply to come to the United Kingdom.

topQ: Article 14 (equal treatment)
How has the right of admitted family members to 'access to employment and self-employment in the same way as the sponsor' been implemented in national law?

answer United Kingdom

A: Family members are able to work or be self employed without restrictions once they are in the United Kingdom. In fact, they often have broader rights than the sponsor, if for example the sponsor is here for on limited leave (eg a work permit holder) as these sponsors will often have restrictions on their right to work which their family members will not.

topQ: Article 15 (autonomous residence permit)
After how many years are spouses, unmarried partners and children entitled to an autonomous residence permit under national law? What other conditions are they required to fulfil in order to obtain such a permit?

answer United Kingdom

A: Spouses, civil and unmarried partners are granted a two year probation period if their sponsor is settled in the UK, after which if they are still married, living together and able to maintain and accommodate themselves without recourse to public funds, they will be able to get permanent residence (indefinite leave to remain). Children would usually be granted leave in line with their parents, ie indefinite leave to enter if the sponsor is settled here.

If the sponsor is on limited leave to remain, the dependants will be granted leave in line (ie the same length of leave) with the sponsor. [An exception to this is unmarried partners, where the applicant would initially be granted a two year period and then leave in line. The sponsor would then become eligible for indefinite leave after five years in the UK.

topQ: Under what conditions can an autonomous residence permit be obtained before the period of time normally required under national law?

answer United Kingdom

A: Bereaved spouses and partners (civil or unmarried) are able to apply for indefinite leave to remain if their sponsor dies during the probation period (paras 287 (b) and 295M-295O). The applicant has to show that the relationship was still subsisting at the time of the death and that the parties intended to continue to live together. Bereaved spouses or partners do not have to satisfy the usual maintenance and accommodation rules. These rules do not apply to dependants of sponsors with limited leave.

The other category of people who are able to remain are those whose relationship breaks down because of domestic violence during the probation period (paras 289-289C). The applicant has to show that they were granted leave to join a spouse or partner settled in the UK, they were in a subsisting relationship at the beginning of the probationary period and they are able to provide evidence that the relationship has permanently broken down before the end of the probationary period as a result of domestic violence.

topQ: Article 16(1)(a) (resources)
Is the income of family members taken into account for the calculation of the sufficient resources at the time of the renewal of the permit?

answer United Kingdom

A: The income of spouses, civil partners or unmarried partners would be taken into account to show that the couple can support and accommodate themselves without recourse to public funds. Although support from family or friends is sometimes accepted, the Home Office argues that the requirement to maintain themselves means that the couple must support themselves from their own resources, and that support from other sources is only acceptable exceptionally, and in the short term. This is contrary to some case law (from the lower courts) which states that the earnings of a dependent child can be taken into account to establish that there would be sufficient resources to maintain the family in the UK (Bibi (Sonor) and Begum (Hasna)). In practice the question of third party support depends mainly on whether the support is sufficiently stable.

topQ: Article 16(1)(b) (real family relationship)
Does the national law allow for refusal or withdrawal of a residence permit on the ground that the family member does no longer live in a real marital or family relationship? If so, which criteria have to be fulfilled under national law? Is the ground applicable to the relationship between parents and minor children?

answer United Kingdom

A: If under the probationary period the relationship of the couple had broken down during that time, then the non-settled partners or spouses leave could be curtailed. This could then make then liable for administrative removal from the United Kingdom. In practice this is rare as the Home Office relies on its ability to refuse further leave after the probationary period.

In relation to children there are no provisions about a breakdown of relationship.

topQ: Article 16(4) (marriage of convenience)
Does the national law contain provisions on fraud or on marriages or partnerships of conveniences? Is so are the definitions, checks and practices in conformity with Article 16(4)?

answer United Kingdom

A: A person who obtains, or tries to obtain, leave to enter or leave to remain by deception can be prosecuted (s24A Immigration Act 1971). In addition, under the Immigration and Asylum Act 1999, section 24, there is a duty on marriage registrars to report to the Home Office any suspicions of a sham marriage. These are defined as a marriage between a British or EEA national and a third country national for the purposes of avoiding the effect of [&] United Kingdom immigration law&.

The Immigration and Asylum Act 1999 gives immigration officers wide ranging powers in relation to search, entry and seizure in dealing with immigration offences. These powers would be exercisable more widely than just if there was a suspicion of fraud or marriage of convenience. In addition the Home Office or entry clearance post could request that the applicant (and if it is an in country application, the sponsor) be interviewed.

topQ: Article 17 (relevant considerations)
How has this clause, requiring that certain specific elements are to be taken into consideration in the decision making on residence permits and removal orders, been implemented in the national law?

answer United Kingdom

A: None of the elements in Article 17 are currently taken into account other than to prove genuineness of relationship. In that sense it could be argued that the nature and solidity of the persons family relationship are considered when a decision is taken. The existence of family, cultural and social ties is not an element that is taken into consideration when a decision is taken.

topQ: Article 18 (judicial review)
Are the sponsor and his family members entitled to have a negative decision reviewed by a court or independent tribunal? If so, please specify the relevant provisions in the national law and the scope of the judicial review (full review, review on legality or marginal control only)?

answer United Kingdom

A: A decision to refuse entry clearance to a family member would carry with it an appeal right to an independent tribunal. The relevant provision granting a right to appeal is s82 Nationality, Immigration and Asylum Act 2002. The scope of the review is in summary on the facts and on the law. (The grounds of appeal are set out in s84 Nationality, Immigration and Asylum Act 2002).

topQ: What are in your view the main strengths and weaknesses of the Directive?

answer United Kingdom

A: I believe one of the major strengths is the message it sends out to third country nationals that they have rights as migrants within in the EU which are recognised by the EU. One of the weaknesses (at least it would be if implemented in the UK) is the lack of time frames in which the administration has to review applications.

topQ: Please send us copies of the relevant laws and regulations, of any legal or other publications on the Directive or of judgments of national courts applying or interpreting the Directive, if possible in electronic form.